IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110016997 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  He states:

* his discharge was based on one isolated incident with over 3 years of service in which he performed honorably and above his peers
* he completed every school and received waivers for promotion 
* he served two tours in Iraq during which he broke his back and shoulder while serving this country proudly and honorably

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 July 2005 for a period of 3 years and 16 weeks.  The highest rank/pay grade he attained while on active duty was specialist (SPC)/E-4.  However, at the time of his discharge he held the rank/pay grade of private/E-1.

2.  He served in Iraq from 22 December 2005 to 20 September 2006 and from 22 September 2007 to 18 April 2008.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for wrongfully using benzodiazepine, a controlled substance, while on duty as a sentinel or lookout while receiving special pay and for wrongfully and without authority wearing the rank of SPC upon his uniform.

4.  On 24 September 2008, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), for misconduct – abuse of illegal drugs.  He was advised of his rights.

5.  He acknowledged receipt of the separation notification.  He consulted with legal counsel and was advised of the basis for the proposed separation action.  He was informed of the effects of this separation action and he acknowledged that he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He waived his right to have his case heard by an administrative separation board and he did not submit statements in his own behalf.

6.  On 2 October 2008, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct – abuse of illegal drugs – with an under honorable conditions (general) character of service.

7.  On 8 October 2008, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  He completed 3 years, 2 months, and 11 days of active military service.  Item 12a (Date Entered Active Duty This Period) of his DD Form 214 erroneously shows he entered active duty on 28 July 2008.

8.  He provides a memorandum from the Chief, Transition Center, dated 8 October 2008, requesting correction of item 12a of the applicant's DD Form 214 to show the applicant entered active duty on 28 July 2005.

9.  On 13 August 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was based on one isolated incident in his over 3 years of service is acknowledged.  However, his service record shows he accepted nonjudicial punishment under Article 15 on two separate occasions for wrongfully using benzodiazepine (a controlled substance) while on duty as a sentinel or lookout and for wrongfully and without authority wearing the rank of SPC upon his uniform.

2.  The applicant's service in Iraq is acknowledged.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 of Army Regulation 635-200 for misconduct.  It appears the separation authority determined the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and the applicant has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

5.  The evidence shows the applicant's records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X __  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

3.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that ARBA CMD administratively correct the records of the individual concerned to amend item 12a of his DD Form 214 to show he entered active duty on 28 July 2005.



      _________X____________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110016997



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016997



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1